As one of the fashion capitals of the world, New York City attracts models from all over the globe. This is especially true at this time of year: Mercedes-Benz Fashion Week. In honor of this event (which began yesterday) we thought it’d be appropriate to discuss visa options for models (H-1B3 and O-1) as well as a few special topics specific to fashion models seeking to work in the US.

What is the H-1B3 and when is it appropriate?The H-1B3 is a subcategory of H-1B visas specifically designated for fashion models. To be eligible for the H-1B3, models must demonstrate that they have achieved “distinguished merit and ability,” which is defined as “one who is prominent in the field of fashion modeling.” Such “prominence” can be proved in several ways, including evidence of the model’s work with renowned clients (i.e., tear sheets from magazines showing fashion and advertising shoots), reference letters from people who work in the fashion industry and can attest to the prominence and talent of the fashion model, press about the model, awards, and contracts, to name just a few. The goal is to demonstrate that the model possesses a “degree of skills and recognition” that is greater than that which is ordinarily encountered in the fashion modeling industry. Since it carries a lower evidentiary standard than the O-1, it is typically the better option for certain models. It should be noted, however, that both the H-1B3 and O-1 do require that the petition be sponsored by a US company, which in the field of modeling typically means an established US modeling agency that will be representing the model in the US.

There are limitations to the H-1B3 that may eliminate it as a viable option for models. First, there are currently only 65,000 H-1B visas available per fiscal year, which runs from October 1st to September 31st of the following year (also see my colleague Protima’s post for more information about the H-1B cap). Once this H-1B cap is filled, the model will not be eligible for an H-1B3 until the start of the following fiscal year. So the timing of the filing itself becomes a very important factor in determining whether or not the H-1B3 is even an option.

Complicating matters, the general H-1B visa category can apply to a wide range of fields, meaning that H-1B3 models are essentially competing for the same number of limited visas made available to computer programmers, architects, accountants, graphic designers, and other professionals seeking to work in what the US Citizenship & Immigration Services (USCIS) defines as “specialty occupations.” As a result, it is often the case that USCIS receives substantially more than 65,000 H-1B visa petitions during the first week the cap opens, which begins April 1st for the coming fiscal year. When this occurs, the H-1B petitions received during this initial period become subject to a lottery system. So even if an agency were to submit a model’s petition during this initial filing period, there is always a possibility that the petition may not be selected for consideration under the coming fiscal year’s H-1B cap.

Furthermore, with very few exceptions, the total amount of time a model can be physically present in the US in H-1B3 status is limited to six years. Once models reach that six year limit, they will need to review other visa options such as the O-1 or an immigrant visa (i.e. Green Card) in order to continue to work in the US.

Finally, there is a requirement of the general H-1B category that does not fit the way the fashion modeling industry typically operates. Specifically, all H-1B visa petitions including H-1B3s for models must include a certified Labor Condition Application (LCA). The LCA is essentially an attestation to the Department of Labor that the model will be employed at a salaried wage that is at or above the prevailing (average) wage for models working in the same county. The idea behind this requirement is to prevent foreign nationals from undercutting US workers by doing the same job for less money. In the modeling world, however, agencies are accustomed to paying models as independent contractors, not salaried employees. For these reasons, modeling agencies can sometimes be averse to pursuing an H-1B3 for a model, as the LCA requirement forces them to change the way they typically engage and pay a model.

If the numerical cap of available H-1B visas has already been met for the given fiscal year, the visa options for models becomes very limited. A petitioner could file an O-1 petition, if the model meets the substantially higher “extraordinary ability” evidentiary standard of the O-1 (which we discuss below). If the model does not yet meet the “extraordinary ability” standard of the O-1, then the petitioner will need to wait to apply for an H-1B3 for the following fiscal year.

What are the requirements for the O-1?The O-1 is reserved for those who can demonstrate “extraordinary ability” in their field, which is a higher standard than the H-1B3. Essentially, this means that the model must demonstrate that they are renowned for achievements in the field of modeling. This can be proven in a number of ways, including testimonial letters from experts in the fashion field, the published display of the model’s work, evidence of the model’s work with companies or on productions of a distinguished reputation, high earnings, press, awards, and contracts.

While the evidence that is submitted for an O-1 petition for a model may sound similar to what can be submitted for the H-1B3, it is worth noting that the quality and quantity of evidence that USCIS is looking for under an O-1 petition is significantly higher than the H-1B3. Despite having the higher evidentiary standard, the O-1 has a considerable advantage over the H-1B3 since it is available throughout the year, as there is no “cap” to the amount of available O-1 visas. Moreover, unlike the H-1B3 there is no LCA requirement with the O-1, which provides agencies with more flexibility as the model does not have be a salaried employee of the agency.

What is the itinerary requirement?When an H-1B3 or O-1 visa petition is filed by an agency, as is typically the case with fashion models, USCIS requires that an “itinerary” be submitted with the petition. The objective of the itinerary is to show USCIS that the foreign national is not coming here for “speculative employment,” but rather that they have definitive events or activities that justify the validity period being requested for the visa (up to three years).

This can create a problem because as anyone working in the fashion industry knows, to have bookings lined up three years in advance is not realistic. Except for a very limited number of circumstances, a modeling agency simply does not know the exact projects a model will be booked for that far in advance. Indeed, it is often the case that models are booked weeks, sometimes days, and even hours before a shoot or show.

For these reasons, addressing the itinerary requirement in the context of the fashion modeling industry can often be one of the more complex aspects of submitting a successful H-1B3 or O-1 petition. Indeed, a petitioning agency will need to provide USCIS with sufficient information to evidence that the model will be coming to the US for definitive work. While consulting an experienced attorney for advice on immigration matters is always recommended, that is particularly true for this complicated issue.

It should also be noted that USCIS is actively looking to gain a greater understanding of how to adjudicate O-1 visa petitions in the context of the fashion industry, including the agency-model relationship and the itinerary requirement. To this end, USCIS’ Public Engagement Division is requesting feedback from industry leaders to gain insight on how the industry operates and how requirements like the itinerary can realistically be met. Any agency or person familiar with the industry that would like to provide their comments on these important issues can do so by emailing USCIS’ Public Engagement Division at public.engagement@uscis.dhs.gov

What should models in particular expect at a US Embassy/Consulate when applying for a visa? Models will be interviewed by a consular officer as part of the visa application. Models will need to articulate why they are going to the US and what they intend to do there (see my colleague Ashley's post about the consular process). More and more, we are hearing accounts of consular officers investigating models’ previous travel to the US to determine if they worked without obtaining a US work visa. Consular officers perform Internet searches and can use any information found on the Internet as evidence in the visa application. If the officer discovers articles, photos, or blog posts about the model performing modeling work in the US prior to obtaining a work visa, the model may be accused of having worked illegally in the US and have their visa denied. As with any individual coming to the US to perform productive labor, models coming to work in the US must first secure a work visa, even if it is unpaid work for a fashion show. If not, there could be potentially serious repercussions to both the model’s future US visa applications as well as to the sponsoring US agency.

Can a model act on an H-1B3 or O-1?Typically no. Models can only appear in a film or television program if they are appearing as themselves. If it is for a fictional or scripted role, then the model must obtain a separate visa (usually an O-1 or O-2) that is specifically approved for the production they have been contracted to work on. These visas tend to be sponsored by the production company or television network behind the film or the series and are limited to acting on the projects that are specifically identified in the visa petition. If a foreign national can line up multiple confirmed film and television projects, it is also possible to file a visa petition sponsored by a US agent that will allow them to work on each of those multiple projects.

What are rules regarding minors working in New York?On October 21, 2013, the Governor of New York, Andrew M. Cuomo signed legislation classifying models under the age of eighteen as child performers. The legislation was the result of the tireless efforts of several advocacy groups looking to protect the rights of minors in the fashion industry as well as to promote more realistic representations of healthy adults on fashion runways, advertisements, and within the pages of fashion editorials.

This new legislation is a significant development for the New York modeling industry, as child performers are subject to additional labor law regulations, including but not limited to: limits on the total number of hours the model can work in a week, limits as to how late and how often they can work, the obtainment of Certificates of Eligibility from the New York Department of Labor to allow clients to employ underage models, and, depending on the circumstances, requirements to provide tutors and chaperones, as well as establish trust accounts for the model. Given these additional requirements, it is advisable that any organization securing the services of a model under the age of eighteen in New York State confer with a labor law attorney to clearly identify their duties and responsibilities in complying with New York Child Performer Labor Laws.

As the law only went into effect on November 20, 2013, the current spring 2014 Mercedes-Benz Fashion Week is the first true test of how this law will impact the industry. While it remains to be seen whether this will result in fashion companies and designers moving away from the use of underage models, the industry may see the New York Department of Labor use this high-profile opportunity to enforce the new law. Among the penalties employers can face for violations of the law is a tiered system of fines: $1,000 for the first violation, $2,000 for the second, and $3,000 for each subsequent violation. Violators may also lose their Certificate of Eligibility to employ underage models. From a public relations perspective, however, the greater consequence may well be the damage a violating employer may face to their business reputation, as no company wants to be known as having violated the labor rights of child performers.

Why is it important for a model to have a good tax advisor?A good tax advisor can help a model navigate through the complex tax and non-immigration related residency issues that can result from their work both in the US and abroad. For instance, given the nature of the industry, a model may be earning income in several different countries, triggering complex international tax issues such as double taxation agreements.

Tax advisors can also counsel models on when it is necessary to file US tax returns as either a resident or non-resident of the US, which can sometimes mean the difference between having to report worldwide income or just US income on US tax returns. Tax-related residency issues such as these are best addressed by a US tax attorney or accountant, as the definitions of resident versus non-resident under US tax laws are substantially different than the definitions used under US immigration laws. It is therefore always advisable that a model consult with a qualified US tax attorney or accountant with knowledge of how to address these and other issues that may arise during the preparation and filing of US tax returns.

ConclusionThese are just some of the special considerations that agencies and models should keep in mind when determining future US immigration plans. In the end, each model’s career, accomplishments, and aspirations for their future in the US should be examined individually in order to determine the best path to accomplish their US immigration goals.